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Category: Privacy Law

  • Obtaining Personal Consent and Release via Placard Notice. Does It Really Work?


    Consent via PlacardYour organization is hosting a festival, a seminar, a book-signing, a musical concert – or other event that will attract attendees. You want to capture images of people enjoying your event – and then share those images in news reports about the event’s success, on social media, and in promotional pieces advertising next year’s event.

    Do You Need a Personal Consent from Each Person Depicted?

    The need to obtain consent varies with the circumstances and with each state’s law. For this blog posting, suffice it to say that while there are First Amendment and other circumstances in which consent is not required to use a person’s image, there is rarely any downside to having the person’s consent.

    How Do You Obtain Consent from All Attendees?

    Since having consent is preferable, how do you logistically obtain a release from the dozens, hundreds – maybe even thousands of people at your event? A posted notice might function as a practical and effective method of obtaining those consents. Pictured at the opening of this blog post is one such notice recently used at a community festival.

    Is Consent Via Posted Notice Enforceable?

    Personal consents and releases come in various forms – written, verbal, explicit, and implied. Each form can potentially be valid and enforceable. The “consent via placard notice” method takes advantage of the implied approach to personal consent. When a person realizes he is being photographed or filmed for a particular purpose and makes no objection, the person has provided implied consent to his depiction for that purpose.

    While implied consent can be enforceable, it is not appropriate for every use and every situation. Here are some general tactics organizations can use for maximizing the effectiveness of consent via placard notice:

    Determine whether Attendees Have the Capacity to Consent. For example, minors do not have the capacity to give consent. Any consent from a minor requires the consent of the minor’s parent or guardian. If your event is likely to attract many unaccompanied minors (e.g., an event attracting teenagers), consent via placard might not produce optimal results.

    Give People Reasonable Opportunity to Decline. This means people need to see the notice. Hence, place the notice in a conspicuous location to maximize chances people will see it as they enter the venue.

    Also, for the consent to be enforceable, people should have a reasonable opportunity to decline participation. If the person has paid $200 for a ticket to a show and declining to enter beyond the posted notice means not seeing the show and forfeiting the $200, the person has an argument that the consent is not valid.

    Use Images in an Incidental Manner; Not a Featured Manner. Ideally, you will use the images in a manner that focuses on the event and in which the people depicted function as background – incidentally or casually captured on camera as part of covering the event. Your use cannot be a disguised advertisement for the sale of a product or service. You might seek additional legal review to evaluate the risk of a defamation claim if the image depicts the subject in a manner that might be embarrassing.

    A case involving Ohio news anchor Catherine Bosley illustrates when use is featured and commercial rather than incidental and when implicit consent is insufficient. While on vacation in Florida, Bosley participated in a wet-t-shirt contest. Subsequently, images of Bosley at the event and in various stages of dress along with her name were used on the cover of a WildWetT video, in the members-only portion of an adult entertainment website, and in direct promotion for other sexually-related goods. The defendants claimed to have the anchor’s consent for use of the images since written notices informing the wet-t-shirt contestants of the future commercial use of their images had been placed around the dressing room, stage, entrances, and exits of the event. The court ruled that the defendants’ use was a commercial use and, thus, under Florida law, required at a minimum Bosley’s explicit verbal consent in order to be valid. (The case is Bosley v. WildWetT.com, 310 F. Supp.2d 914 (N.D. Oh. 2004)).

  • What Happens When Your Smartphone Starts Monitoring Your Moods?

    A smartphone that recognizes your mood just might be on the horizon. A recent San Diego Union Tribune article “Can smartphones get attuned to your moods?” discusses current research that would structure your music playlists based on your mood. The method determines your mood by analyzing data from sensors in the smartphone – the accelerometer, the GPS device and the microphone. Researchers are also considering getting data from monitoring keywords in the emails you send and the content of the websites you visit.

    The article briefly quotes me on the privacy issues such monitoring would raise – of which there are several.

    Is It Legal for Your Smartphone Provider to Collect This Information?

    At the moment, internet and digital privacy is mostly self-regulated. Hence, there’s no federal law stopping the people behind your smartphone from monitoring the websites you visit and your location. However, there are lots of government officials and advocacy groups who would be happier if providers got consumer permission for such monitoring. Monitoring a person’s emails or phone calls without their permission is another matter and would  likely violate wiretapping laws, the Computer Fraud and Abuse Act, the Stored Communications Act, and other state and federal laws.

    Should Consumers Grant Permission for Smartphones to Monitor Their Moods?

    Maybe. There are pluses and minuses to allowing your digital equipment to have sufficient information about you to make accurate recommendations for the music, books, products, travel plans, job opportunities, etc. that may interest you. From a privacy perspective, the minus of having too much personal information about you available in the digital world is that the information may be used in ways you don’t anticipate. When information is collected about consumers, there is always someone who wants access to that information. Whether or not the people/institutions can legally access that information depends on who they are and why they want the information.

  • Internet Legal Trends to Watch. Part 2A: More on Wikileaks and Online Privacy

    In previous postings in this Internet Legal Trends to Watch series, I discussed Online Privacy and Wikileaks. A development in the Wikileaks story has some interesting overlap with the question of how much of our personal information is available online.

    Evidently, the federal government subpoenaed information from the Twitter accounts of Julian Assange and other Wikileaks associates. When a private individual or organization tries to obtain your anonymous online identity or online information, you must be notified of the subpoena request so you have an opportunity to “quash” the subpoena and keep your information private. In the Wikileaks case, the government got the subpoena with a gag order prohibiting Twitter from notifying Assange and the other individuals of the subpoena request.

    We only know this because Twitter successfully fought to remove the gag order and then informed Assange of the subpoena request. The disturbing part of the story is that the government likely subpoenaed other social networks used by Assange and that those social networks may have handed over personal information without making any attempts to fight the gag order.

    Reporter, Barton Gellman, offers a more detailed overview in the article “Twitter, Wikileaks, and the Broken Market for Consumer Privacy”.

  • Internet Legal Trends to Watch. Part 1: Online Privacy & Do Not Track

    Privacy is the new buzz word in talks about the internet and social media. Consumers are becoming increasingly concerned with behavioral and targeted advertising, which is the technique of tracking your online search and browsing activity to determine which products might interest you.

    Websites may have more information about you than you realize. They gather information through your online postings, through tracking technology, and through sharing information with business partners. In this radio interview with host Scott West on Daybreak USA, I explain how websites know more about us than we may realize and some of the consequences of having too much of our personal information available through the internet.

    Isn’t It Illegal for Websites to Track and Share Information about Me Without Telling Me?

    No, not really. There is currently no federal law that requires a website to tell you what information it collects from you, what it does with that information – or even if it collects information at all. The important exception is for sites that are targeted to children. They must comply with the Children’s Online Privacy Protection Act (COPPA). Some states are becoming more aggressive in demanding privacy policies and procedures of websites. For example, the California Online Privacy Protection Act of 2003 requires posting of a privacy policy by any commercial website that collects personally identifiable information from consumers residing in California.

    What’s On the Horizon for Privacy Laws?

    Congress and regulators are looking closely at online privacy so this may change in the future.

    FTC Proposal. The Federal Trade Commission released a report in December and is currently soliciting comments on a new privacy framework that among other things would (i) allow consumers to choose a “Do Not Track” mechanism similar in concept to the “Do Not Call” list, and (ii) require online companies to be more transparent in disclosing what information they collect and how they use it. My DC Bar colleague, Andy Mirsky, discusses the major principles of the FTC’s proposal in a podcast interview with Karen Neuman.

    Congressional Action. Rep. Edward Markey (D-Mass.) and other members of Congress have indicated an intention to introduce “Do Not Track” for children. Congress has also indicated that it may pass legislation to give the FTC more privacy rule-making and enforcement authority, a likely required step before the FTC could put its proposed privacy framework in place.

    Consumer Action. In 2010 there were at least six lawsuits filed in California against websites and companies that use flash cookies, a tracking mechanism that consumers cannot easily delete. Several of these lawsuits have settled with the companies agreeing to cease using the cookie technology. This legal action suggests that consumers will become less tolerant of tracking techniques they deem to be invasive.

  • 4 More Privacy Questions Diane Sawyer Should Have Asked Mark Zuckerberg

    Diane Sawyer recently interviewed Facebook CEO and Founder, Mark Zuckerberg.

    Facebook upset many people when it expanded how its subscriber’s personal information is shared. While the Sawyer interview did touch on Facebook privacy issues, there are a few additional privacy-related questions I would like to hear Mark Zuckerberg address:

    1. Where is the master opt-out switch? Facebook subscribers can opt out of most of the new privacy default settings. However, Facebook has not immediately provided an easy-to-use interface for opting out. Also, it is unclear how many screens one must visit to opt out of ALL the default privacy settings. For example, if one screen offers you the option to make your Facebook postings available to friends only, you may still need to go to another screen to opt out of Instant Personalization.

    2. To what extent does Facebook monitor our activities while we’re online and for how long does Facebook keep that data? Some online sites track and record the details of our activities while you’re online. They may track what time you came onto the site and what advertisements you looked at while you were on the site. This can certainly have some value to consumers. For example, tracking what you’ve looked at and what you bought is why amazon.com can recommend additional books that might interest you. However, such tracking can also have unanticipated and unwanted consequences. In a previous blog posting, I recount the story of Disa Powell, a woman whose Facebook and MySpace account data was subpoenaed as part of a civil lawsuit.

    3. How do my Facebook friends impact my privacy? Even when you have designated your information as private, someone may have access to information you’ve posted at a social media website through people you’ve friended or linked to. For example, with the Facebook Instant Personalization feature, even if you disable Instant Personalization, Facebook may still disclose information to third party websites through friends who have not disabled the service.

    4. How does Facebook monitor the privacy policies of its partners? Facebook shares information about you with other social media sites, with producers of apps, and with producers of plug-ins.

    You can view the privacy conversation Diane Sawyers did have with Mark Zuckerberg here.

  • No European Love for Google Street View Program

    Europe has not been a big fan of Google’s Street View Program.

    What Is Street View

    Street View is a web application that allows you to take a virtual tour of a city and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology. Several European countries were not thrilled by Google’s filming of people’s residences and private property without their permission.

    Another Street View Misstep

    Evidently, while driving the city streets collecting digital photographs, Google inadvertently collected personal data from unencrypted Wi-Fi networks. News reports suggests the collected data includes information such as email and bank account numbers.

    Google wanted to destroy the data after conducting an internal audit to correct its data gathering practices. However, European privacy regulators were outraged at Google’s mistake. Germany, Spain and France have demanded that Google provide them with copies of the mistakenly collected data. And who knows where the European investigation will go from there.

  • Why Facebook Is Its Own Worst Enemy

    Currently, there is no federal law that requires a website to disclose whether or not it collects personally identifiable information about its visitors. The one significant exception is websites that collect personal information from children under thirteen.

    By pushing the envelope on the collection, sharing, and use of personal information, popular social networking site Facebook may motivate Congress to pass legislation that would impose much more privacy regulation on websites and require disclosure on uses of personal information. Facebook has mutated from a service for private communication with your selected friends and colleagues to a social media network where certain information about you is shared with the public and with Facebook’s website partners – whether you like it or not. Kurt Opsahl of the Electronic Frontier Foundation gives the timeline of this Facebook transformation.

    A significant part of the controversy is that many of the new Facebook features are “opt-out” rather than the consumer-protection-preferred “opt-in”. It doesn’t help that Facebook is not making it easy to opt out of the new features – requiring multiple clicks in multiple (sometimes less than intuitive) locations. The Washington Post’s Rob Pegoraro discusses the quirks of Facebook’s new privacy interface referring to it as “changing, confusing and sometimes outright cryptic”.

    In response to Facebook and other sites with aggressive data sharing strategies, Congress has introduced a Privacy Bill which if passed would require all websites to inform people of the data they collect from their online visitors and how they use that data. For those who can’t wait for a legislative fix, Gina Trapani, Tech Writer and Web Developer, offers some helpful step-by-step guidance on opting out of the Facebook privacy settings.

  • Europe May Forbid Photos of Your Home; US Law Does Not

    Threats to Google’s Street View program illustrate how variations in international law can impact internet companies.

    Street View, a 360-degree zoomable web application, allows you to use your computer to take a virtual tour of cities and towns and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology.

    Google’s plans to expand Street View into European cities are encountering some bumps in the road. Germany threatened sanctions if Google failed to make some changes to the Street View program. Among other problems, Germany was most concerned with Google’s unauthorized filming of people’s residences and private property without their permission. Evidently that’s a no-no under German law. Directly across the pond, Beatle Paul McCartney joined in on the Google bashing and demanded that his London mansion be removed from Street View’s UK application. News reports indicated that Google complied with McCartney’s demand.

    Don’t Try That In the United States

    The European complaints about Street View remind me of a similar situation in the United States that generated a much different result. This U.S. situation focuses on singer/actress Barbara Streisand.

    The California Coastal Records Project offers 12,000 aerial views and frames of the California coastline. After discovering that a single frame included her Malibu estate, Barbara Streisand sued claiming that the inclusion of her home in the photo invaded her privacy, violated California’s "anti-paparazzi" statute, and threatened her security. Not only was Streisand’s lawsuit dismissed on an anti-SLAPP motion, she was also ordered to reimburse California Coastal Records and other defendants $177,107.54 for their legal fees and her actions were extensively ridiculed in the media.